93 Op. Att’y Gen. 103 (2008)

Attorney General of Maryland — Opinion
August 22, 2008.

COUNTIES
COMMISSIONER COUNTIES — ZONING AND PLANNING — PUBLIC ROADS — PUBLICROADS SUBTITLE OF ARTICLE 25 NOT REPEALED BY ENACTMENT OFARTICLE 66B

DOUGLAS F. GANSLER.

Dear Emanuel Demedis

On behalf of the Calvert County Board of County Commissioners, you have requested our opinion on whether part of the public roads subtitle under Article 25 of the Annotated Code of Maryland was repealed by the subsequent enactment of certain provisions of Article 66B of the Code, entitled Land Use.

While some provisions of the public roads subtitle appear antiquated, in our view, the public roads subtitle was not repealed by the enactment of the Land Use article. We recommend that the General Assembly evaluate these provisions, as well as other statutory provisions governing county roads, for appropriate modernization.

I Statutory BackgroundA. Public Roads Subtitle of Article 25
You question the continuing viability of certain provisions in Annotated Code of Maryland, Article 25, §§ 135 — 155B, relating to the opening, closing, or altering of a road by a county.[1] Many of these provisions are virtually unchanged since their initial

Page 104

enactment, more than 150 years ago. See Chapter 220, Laws of Maryland 1853.[2]

Article 25, § 135 allows a person to petition county commissioners for the opening, altering, or closing of a road. Before submitting the petition, the person must give notice to the public in accordance with § 136(a). The county commissioners may also initiate this process on their own initiative in the absence of a petition. Article 25, § 136(b).[3] The county commissioners’ authority under this provision is “[i]n addition to . . . their present power to open, alter or close public roads.” Id.[4]

Regardless of how the process is initiated, opponents of the proposed action may file a “counter petition.” Article 25, § 137. The county com missioners are to take into consideration reasons set forth in any counter petition, as well as any other testimony, in reaching a decision as “shall seem right and proper.” Article 25, §§ 136(b), 137.

If the county commissioners decide to open a road pursuant to the provisions of the public roads subtitle, they may contract with the

Page 105

owner of any property through which the road is intended to run for the necessary right-of-w ay. Article 25, § 138. In addition, the county commissioners are to arrange for a surveyor to create a plat of the road that is filed with the clerk of the county circuit court. Id. The property becomes county property “to the same extent as other county roads.” Id.

Under the public roads subtitle, the county commissioners have the option of appointing three “examiners”, who must be disinterested property owners (“freeholders”) in the county, [5] to evaluate the opening, altering, or closing of a road in a particular area. Article 25, § 138. After giving 30 days advance public notice, the examiners are to convene at the proposed site to determine whether “the public convenience requires that the road should be opened, altered, or closed.” Article 25, § 141.

The examiners are to report their conclusions to the county commissioners. Article 25, §§ 142, 143. If the examiners support opening or altering a road, they are to locate the road in a manner that, in their judgment, will best promote the public convenience, and cause a plat to be created showing the road’s location; a plat also is required to show any old road that is to be altered or closed. Article 25, § 142. The plat and a report, including the reasons for the examiners’ opinions, is to be provided to the county commissioners. Id. If they recommend that the road be opened or altered, the examiners are also to evaluate the loss sustained by the owner of the property and include that determination in their report to the county commissioners. Article 25, § 146. In return for these efforts, an examiner is entitled to compensation set by the county commissioners “not exceeding two dollars a day.” § 151. Regardless of whether the county commissioners appoint examiners, the final decision of whether to open, alter, or close a road lies with the commissioners. §§ 137, 138, and 150.

Subject to individual county exceptions, the public roads subtitle prohibits the opening of a public road or the altering of a public road in a manner that would cause the road to run through a building, garden, yard, or burial ground, without the owner’s written consent. Article 25, § 144. The public roads subtitle also addresses, among other things, minimum widths, the liability of petitioners for

Page 106

the costs of the road, and allocation of costs related to roads opened under the subtitle. Article 25, §§ 145, 147, 152.

B. Land Use Article (Article 66B)
Article 66B, which authorizes counties to adopt various land use restrictions, was first enacted during the 20th century and thus is of more recent origin than the public roads subtitle of Article 25.[6] It repealed “inconsistent” or “contrary” statutory provisions, although it did not specify the provisions in that category. Article 66B, § 7.05. In suggesting that the enactment of Article 66B repealed the public road subtitle of Article 25, you focus on three aspects of Article 66B: (1) the provisions for comprehensive planning, including a required transportation element; (2) the subdivision process; and (3) the authority of the planning commission to recommend to the county commissioners the reservation of property for future streets and other parts of the transportation element of the comprehensive plan.

1. Planning

Article 66B authorizes counties governed by a board of county commissioners[7] to undertake certain land use and development measures.[8] Article 66B authorizes these counties to create by

Page 107

ordinance a county planning commission “with the powers and duties set forth in [Article 66B]” and to “enact, adopt, amend, and execute a plan.” Article 66B, § 3.01(a). The planning commission develops and approves the plan, but final adoption lies with the county commissioners. Article 66B, § 3.05(a)(1). At least once every six years, the planning commission must review a plan and make certain revisions if necessary. Article 66B, § 3.05(b)(2).

For purposes of this statute, a plan means “the policies, statements, goals, and interrelated plans for private and public land use, transportation, and community facilities documented in texts and maps which constitute the guide for the area’s future development.” Article 66B, § 1.00(h)(1). The plan is to “[s]erve as a guide to public and private actions and decisions to insure the development of public and private property in appropriate relationships.” Article 66B, § 3.05(a)(2)(i). Several “visions” are to be part of a plan, including “[a]dequate . . . infrastructure under the control of the county . . . in areas where growth is to occur.” Article 66B, § 1.01(7).

Among other requirements, the plan is to include a transportation plan element which shall “1. [p]ropose the most appropriate and desirable patterns for the general location, character, and extent of the channels, routes, and terminals for transportation facilities, and for the circulation of persons and goods on a schedule that extends as far into the future as is reasonable; 2. [p]rovide for bicycle and pedestrian access and travelways; and 3. [i]nclude an estimate of the probable utilization of any proposed improvement[.]” Article 66B, § 3.05(a)(4)(iii). The transportation element may include “all types of highways and streets” and is to provide for the local jurisdiction’s “[t]ransportation needs.” Article 66B, § 3.05(a)(5)(i) and (c)(4)(i).

Page 108

When a plan is in place, a publicly or privately owned street ordinarily may not be authorized or constructed unless the planning commission determines it is consistent with the plan. Article 66B, § 3.08(a). The local legislative body or other body having jurisdiction over the street’s financing may override the planning commission’s decision by a two-thirds supermajority vote. Article 66B, § 3.08(b).[9]
2. Subdivision Regulations

Under Article 66B, a planning commission is to recommend subdivision regulations to the county commissioners for adoption.[10]
Article 66B, § 5.03(a)(1). Among other matters, subdivision regulations may include provisions to “[p]roperly arrange streets in relation to each other and to the master plan” and address the extent the grading and improvement of streets and other ways must be undertaken in advance of plat approval. Article 66B, § 5.03(a)(2)(iii) and (b)(1)(i).

Once the county commissioners have adopted a transportation element for the area and a certified copy of the plan has been filed with the clerk of the circuit court, a subdivision plat may not be filed without the planning commission’s approval of the plat. Article 66B, § 5.02(a)(1).[11] Approval of a subdivision plat by the planning commission is considered “[a]n amendment or a detail of the plan” and “[a] part of the plan.” Article 66B, § 5.04(b)(1). However, plat approval “does not constitute or effect an acceptance by the [county] of any street . . . shown on the plat.” Article 66B, § 5.04(b)(2).

Page 109

Once a planning commission has begun to exercise control over the subdivision of land under § 5.01, it exercises exclusive authority over plat approval. Article 66B, § 5.07(a).[12]
3. Reservation of Property for Roadways

The Land Use article also contains a subtitle called “Development of Mapped Streets.” Article 66B, § 6.01 et seq.[13] After adoption of the transportation element of the plan, a planning commission may conduct surveys to locate street lines and other parts of the transportation element and create a plat showing the property that the planning commission recommends be reserved for future dedication or acquisition for public streets and any other part of the transportation element. Article 66B, § 6.01(a). Final approval of the plat, however, and the duration of the reservation for streets are decisions reserved to the county commissioners. Article 66B, § 6.01(d) and (e).

The adoption of the plat reserves the property for future taking or acquisition, but does not constitute the opening or establishment of a street or a taking of the property. Article 66B, § 6.01(f)(1) and (2). While a properly-recorded reservation is in effect, a permit may not ordinarily be issued for the development of any part of the property between the lines of the proposed street as platted. Article 66B, § 6.02(a).[14]

The county commissioners may abandon any reservation at any time through adoption of a resolution and certification of the abandonment to the clerk of the circuit court. Article 66B, § 6.01(h).

Page 110

4. Repeal Provision

As noted above, Article 66B includes a provision that repeals inconsistent statutes. It reads:

Except as otherwise provided in [Article 66B], any law or ordinance that is inconsistent with or contrary to the provisions of this article is repealed to the extent of the inconsistency.

Article 66B, § 7.05. A similar provision was initially enacted by Chapter 599, Laws of Maryland 1933. See Article 66B, § 37 (Supp. 1935). In effect, § 7.05 simply codifies the general rule that, when two statutes are inconsistent, the later-enacted measure prevails. See Piscatelli v. Bd. of Liquor License Comm’rs, 378 Md. 623, 633, 837 A.2d 931 (2003).

II Analysis
You have asked whether the public roads subtitle has been repealed by virtue of § 7.05, the provision of Article 66B that repeals inconsistent laws. You suggested that the authority granted to county commissioners under Article 66B “subsumes many of the public roads provisions in Article 25” and “provides a much more modern method of planning and providing for the transportation needs within a given jurisdiction.” You indicated your view that the effect of these provisions has resulted in the repeal of Article 25, §§ 135 — 152 by operation of § 7.05, even though the Legislature did not explicitly repeal those provisions when it enacted Article 66B.

As the Court of Appeals has recently recognized, “[t]racing the entire panoply of related enabling statutes [governing local governments] in Maryland is a tad complex.” Casey v. Mayor and City Council of Rockville, 400 Md. 259, 929 A.2d 74 (2007) (discussing interrelationship of Articles 23A, 25, 25A, 28 and 66B of the Maryland Code). Reconciling various statutes is an exercise of statutory construction; thus, the cardinal rule is to effectuate the intent of the Legislature. State v. Ghajari, 346 Md. 101, 115, 695 A.2d 143 (1997). When statutes irreconcilably conflict, the presumed legislative intent is that the later enactment repeals by implication the earlier enactment to the extent of any conflict. Id. However, whenever possible, repeal by implication is to be avoided.

Page 111

Id. The reason is that it is also presumed that the Legislature intended that its enactments “operate together as a consistent and harmonious body of law.” Id. quoting State v. Harris, 327 Md. 32, 39; Farmers Merchants Nat’l Bank v. Schlossberg, 306 Md. 48, 61 (1986). See also 1A N. Singer, Statutes and Statutory Construction § 23:9 (6th ed. Rev. 2002). Thus, a later enactment should only be viewed as repealing an earlier enactment when there is some express reference to the earlier enactment, there is a “manifest inconsistency” between the two statutes, or their provisions are “so repugnant that they cannot stand together.” Dep’t of Natural Resources v. France, 277 Md. 432, 460, 357 A.2d 78 (1976). In interpreting related statutes, an attempt must be made to give effect to both statutes to the extent that the statutes can be reconciled. Ghajari, 346 Md. at 115.

Some provisions in the public roads subtitle appear duplicative or unnecessary in light of alternative authority.[15] For example, county commissioners have authority to acquire property and open a public road under Article 25, §§ 11A(a)(1)(i) and 25(a).[16] Other provisions of the public roads subtitle are, as a practical matter, anachronistic. For example, even if a county commissioners saw value in appointing disinterested citizens to assess the merits of a proposed road opening or closure, recruitment of examiners may be difficult in light of the cap on compensation at $2 per day.[17]

As outlined above, the Land Use article provides a framework for planning and approval of new roads without reference to the provisions of Article 25. A comprehensive plan adopted under the authority of Article 66B is intended to guide both public and private actions, and is to include a transportation element addressing, among other things, all types of highway and streets. Article 66B, § 3.05. Once the transportation element is in place, “the adoption of

Page 112

subdivision regulations is required . . . and . . . those regulations are authorized to take into consideration `the avoidance of congestion of population.” Bd. of County Comm’rs of Cecil County v. Gaster, 285 Md. 233, 245, 401 A.2d 666 (1979). A subdivision plat, including proposed roadways, generally must be approved by the planning commission as consistent with the plan. Article 66B, § 5.02(a)(1). Furthermore, a planning commission can recommend to the county commissioners the reservation of property for future dedication or acquisition for future roads.

However, in our view, it is possible to harmonize the provisions of the public roads subtitle and the Land Use article. Accordingly, we do not conclude that the provisions of the public roads subtitle have been repealed.

For example, the public roads subtitle provides a mechanism under which a person can request the county to undertake the opening, alteration, or closure of a public road. This process could occur independently of any proposed subdivision. On the other hand, neither the approval of a subdivision plat nor a reservation of private property for a future roadway alone automatically results in a road becoming a public roadway. Article 66B, §§ 5.04(b)(2); 6.01(f)(1) and (2); cf. United Finance Corp. v. Royal Reality Corp., 172 Md. 138, 143, 191 A.81 (1937) (mere location of a street on a plat by local government does not, of itself, make the street a public way).[18]

At some point, the county planning commission would be expected to evaluate a plat or proposal for a new or altered roadway for consistency with the county’s comprehensive plan. Article 66B, § 3.08. However, nothing in the public roads subtitle would preclude such review. And if the county commissioners agree to an improvement under the public roads subtitle, the end result is a new or altered road that would become part of the county road system. The public roads subtitle also provides a process by which a person may petition to eliminate a road or eliminate a proposed road that might exist only on paper, an option not addressed under alternative statutory provisions.

While there are provisions in the public roads subtitle that appear duplicative or unnecessary in light of alternative authority

Page 113

available to commission counties, there is neither a “manifest inconsistency” with Article 66B nor are the provisions “so repugnant that they cannot stand together.” Cf. Dep’t of Natural Resources v. France, 277 Md. at 460. Finally, Article 66B, § 7.05, providing for the repeal of inconsistent provisions, is not itself an express repeal of the public roads subtitle. Cf. Saunders v. State, 8 Md. App. 143, 258 A.2d 776 (1969) (general statutory repealer in shoplifting statute, very similar to Article 66B, § 7.05, did not eliminate the crime of larceny from mercantile establishment); see also 1A N. Singer, Statutes and Statutory Construction § 23.8 (6th ed. Rev. 2002). Thus, we cannot conclude that enactment of provisions in Article 66B effectively repealed provisions in the public roads subtitle under Article 25.

III Conclusion
In summary, while some of the provisions under the public roads subtitle under Article 25 of the Code appear antiquated, in our view, the provisions have not been repealed by the enactment of Article 66B of the Code. Nonetheless, we recommend that the General Assembly evaluate these provisions, as well as other statutory provisions governing county roads, for appropriate modernization.

Douglas F. Gansler

Attorney General

William R. Varga

Assistant Attorney General

Robert N. McDonald

Chief Counsel

Opinions and Advice

Page 114